Cognizance & Summoning of Accused

( Sec. 173, 190, 200, 202, 203 & 204 CrPC)

…. S.S. Upadhyay
Former District & Sessions Judge/
Former Legal Advisor to Governor
UP, Lucknow
Mobile : 9453048988
E-mail : ssupadhyay28@gmail.com

1. 'Cognizance' what is ? : Taking cognizance does not involve any formal

action or indeed action of any kind but occurs as soon as a Magistrate as such
applies his mind to the suspected commission of an offence. Once the
Magistrate applies his mind to the offence alleged and decides to initiate
proceeding against the alleged offender, it can be stated that he has taken
cognizance of the offence and cognizance is in regard to the offence and not
the offender. Cognizance is mainly of the offence and not the offender.
Cognizance would take place at a point when a Magistrate first takes Judicial
notice of the offence either on a complaint or on a police report or upon
information of a person other than the police officer taking judicial notice is
nothing but perusing the report of the police officer, proceeding further on that
report by opening the file and thereafter taking further steps to ensure the
presence of the accused and all other consequential steps including at a letter
stage and depending upon the nature of offence alleged to pass a necessary
order of committal to a court of session. See : Prasad Shrikant Purohit Vs.
State of Maharashtra, (2015) 7 SCC 440.
2. After commitment of the complaint case to sessions, Magistrate has no
power to issue summons to an accused u/s 204(1)(b) CrPC : After
commitment of the complaint case to sessions, Magistrate has no power to
issue summons to an accused u/s 204(1)(b) CrPC. The sessions Judge of
course would be at liberty to proceed against such person/accused u/s 319
CrPC if warranted by the facts. See….Jile Singh Vs. State of UP & another,
(2012) 3 SCC 383.
3. Meaning of "charge-sheet" & "final report" u/s 173(2) CrPC : Neither
charge-sheet nor final report has been defined in the CrPC. Charge-sheet or
final report, whatever may be the nomenclature only means a report u/s 173
CrPC which has to filed by the police on completion of investigation. See :
Srinivas Gundluri Vs. SEPCO Electric Power Corporation, (2010) 8 SCC 206
4. Duty of magistrate in passing summoning order in complaint cases : In the
case of Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749, the duty

1
 of Magistrate while passing summoning order in a complaint case has been
clarified by the Hon’ble Supreme Court thus : “Summoning of an accused in a
criminal case is a serious matter. Criminal law cannot be set into motion as a matter of
course. It is not that the complainant has to bring only two witnesses to support his
allegations in the complaint to have the criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that he has applied his mind to the facts of
the case and the law applicable thereto. He has to examine the nature of allegations made in
the complaint and the evidence both oral and documentary in support thereof and would
that be sufficient for the complainant to succeed in bringing charge home to the accused. It
is not that the Magistrate is a silent spectator at the time of recording of preliminary
evidence before summoning of the accused. The Magistrate has to carefully scrutinize the
evidence brought on record and may even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and
then examine if any offence is prima facie committed by all or any of the accused.”
5. Summoning order in complaint case need not be reasoned : Section
204 does not mandate the Magistrate to explicitly state the reasons for
issuance of summons. It clearly states that if in the opinion of a Magistrate
taking cognizance of an offence, there is sufficient ground for proceeding, then
the summons may be issued. This section mandates the Magistrate to form an
opinion as to whether there exists a sufficient ground for summons to be
issued but it is nowhere mentioned in the section that the explicit narration of
the same is mandatory, meaning thereby that it is not a pre requisite for
deciding the validity of the summons issued. See…Bhushan Kumar &
Another Vs. State (NCT of Delhi) & Another, AIR 2012 SC 1747.
6. Prosecution of a person on complaint a serious matter ... In the case of
Harshendra Kumar D. Vs. Rebatilata Koley, 2011 CrLJ 1626 (SC), the
Director of a company who had not issued the cheque and had resigned from
the company much before the date of issue of the cheque but even then he was
prosecuted by the complainant for offences u/s 138 read with 141 of the
Negotiable Instruments Act, 1881 by filing a complaint before the magistrate,
quashing the criminal proceedings initiated against the Director/ accused, the
Hon’ble Supreme Court has held that criminal prosecution is a serious matter.
It affects the liberty of a person. No greater damage can be done to the
reputation of a person than dragging him in a criminal case.
7. Duty of magistrate in passing summoning order in complaint cases---The
law as laid down by the Supreme Court in the case of Pepsi Foods Ltd. Vs.

2
 Special Judicial Magistrate, (1998) 5 SCC 749 has also been laid down in the
cases noted below.......
1- Everest Advertising Pvt. Ltd. Vs. State Government of NCT of Delhi,
AIR 1992 SC 604.
2- Bhagirath Arya Vs. State of UP, 2008 (61) ACC 853 (All)
8. Duty of Magistrate while issuing summons to accused u/s 204 CrPC :
While issuing summons to accused u/s 204 CrPC, Magistrate has only to see
whether allegations made in complaint or prima facie sufficient to proceed
against the accused. Magistrate need not enquire into merits or demerits of
case. See : Fiona Shrikhande Vs. State of Maharashtra, AIR 2014 SC 957.
9. Summoning order passed by Magistrate in complaint case must reflect
application of mind : Summoning order passed by Magistrate in complaint
case must reflect application of mind. See: M/S GHCL Employees Stock
Option Trust Vs. M/S India Infoline Ltd., AIR 2013 SC 1433.
10. Recording of reasons by Magistrate in summoning order u/s 204 CrPC
mandatory otherwise order to be set aside : Recording of reasons by
Magistrate in summoning order u/s 204 CrPC is mandatory otherwise the
summoning order would be set aside. See : Sunil Bharti Mittal Vs. CBI, AIR
2015 SC 923 (Three-Judge Bench).
11. Recording of reasons by Magistrate in summoning order u/s 204 CrPC
not required : In determining the question whether any process is to be issued
or not, what the Magistrate has to be satisfied is whether there is sufficient
ground for proceeding and not whether there is sufficient ground for
conviction. Whether the evidence is adequate for supporting the conviction,
can be determined only at the trial and not at the stage of enquiry. At the stage
of issuing the process to the accused, the Magistrate is not required to record
reasons. There is no legal requirement imposed on a Magistrate for passing
detailed order while issuing summons. The process issued to accused cannot
be quashed merely on the ground that the Magistrate had not passed a
speaking order. Section 204 CrPC does not mandate the Magistrate to
explicitly state the reasons for issuance of summons. See….

(i). Bhushan Kumar Vs. State NCT of Delhi, AIR 2012 SC 1747
(ii). Nupur Talwar Vs. CBI, AIR 2012 SC 1921
(iii). Dy. Chief Controller Vs. Roshanlal Agarwal, AIR 2003 SC 1900
(iv). Kanti Bhadra Shah Vs. State of WB, AIR 2000 SC 522

12. Disclosure of reasons by Magistrate in summoning order passed in

complaint case not required : Where in a complaint case the Magistrate had
taken cognizance of offences u/s 406, 420, 408, 409, 477-A, 120-B read with
Section 34 of the IPC without discussing the reasons behind taking cognizance
of the offences and passing of the summoning order, it has been held by the
3
 Hon'ble Allahabad High Court that it may be presumed that the Magistrate
was satisfied that there was sufficient material for taking cognizance. Detailed
discussion was not required. Once the Magistrate issues process, even without
writing words "cognizance", it is presumed that he has taken cognizance.
Writing of words "cognizance is taken" is not necessary. See : Ms. Sonia
Gobind Gidwani & Another Vs. State of UP & Others, 2013 (83) ACC
312. (All).
13. Truth of allegations in complaint not to be gone into at the stage of
cognizance: At the stage of taking cognizance of offences in a complaint case,
it is impermissible to go into the truthfulness or otherwise of the allegations
made in the complaint and one has to proceed on a footing that the allegations
made are true. See.. Gambhirsinh R.Dekare Vs. Fhalgunbhai Chimanbhai Patel,
AIR 2013 SC 1590.
(In this case Editor of the news paper and the journalist both were held guilty in complaint case for
publishing defamatory matter and provisions of Press and Registration of Books Act, 1867 were involved
therein).

14. Duty of magistrate in passing summoning order in complaint case : As

regards the duty of a Magistrate while passing summoning order in a
complaint case, the Hon’ble Supreme Court has ruled thus : “Summoning of
an accused in a criminal case is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that the complainant has to bring
only two witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the Magistrate summoning the
accused must reflect that he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the nature of allegations made in
the complaint and the evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to succeed in bringing charge
home to the accused. It is not that the Magistrate is a silent spectator at the
time of recording of preliminary evidence before summoning of the accused.
The Magistrate has to carefully scrutinize the evidence brought on record and
may even himself put questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused.”
See : Pepsi Foods Ltd. Vs. Special Judicial Magistrate, (1998) 5 SCC 749
(para 10)

15. Extent of scrutiny of evidence at the stage of passing summoning order in

complaint cases---At the stage of issuing process the Magistrate is mainly
concerned with the allegations made in the complaint or the evidence led in

4
 support of the same and he is only to be prima facie satisfied whether there are
sufficient grounds for proceeding against the accused. It is not the province of
the magistrate to enter into a detailed discussion of the merits or the de_merits
of the case. In other words, the scope of enquiry u/s 202 is limited to finding
out the truth or false hood of the complaint in order to determine the question
of the issue of the process. The enquiry is for the purpose of ascertaining the
truth or falsehood of the complaint i.e. for ascertaining whether there is
evidence in support of the complaint so as to justify the issue of process and
commencement of proceedings against the person concerned. The section does
no say that a regular trial for adjudging the guilt or otherwise, of the person
complained against should take place at the stage, for the person complained
against can be legally called upon to answer the accusation made against him
only when a process has issued and he is put on trial. It will be clear from the
above that the scope of enquiry u/s 202 of the Cr PC is extremely limited—
limited only to the ascertainment of the truth of falsehood of the allegations
made complaint_(i) on the material placed by the complaint before the court,
(ii) for the limited purpose of finding out whether prima facie case for issue of
process has been made out, and (iii) for deciding the question purely from the
point of view of the complaint without at all adverting to any defence that the
accused may have. In fact is well settled that in proceeding u/s 202 the accused
has got absolutely no locus-standi and is not entitled to be heard on the
question whether the process should be issued against him or not. Therefore at
the stage of Sec. Cr PC as the accused has no locus-standi the magistrate has
absolutely no jurisdiction to go into any materials or evidence which may be
produced by the accused, who may be present only to watch the proceedings
and not to participate in them. Indeed, if the documents or the evidence
produced by the accused are allowed to be taken by the magistrate, then an
inquiry u/s 202 convert into a full dress trial defeating the very object for
which this section has been engrafted. See--- Nagawwa Vs. Veeranna
Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC)
16. No meticulous evaluation of evidence by magistrate at the time of passing
summoning order in complaint case-- At the stage of issuing process the
Magistrate is mainly concerned with the allegations made in the complaint or
the evidence led in support of the same and he is only to be prima facie
satisfied whether there are sufficient grounds for proceeding against the

5
 accused. It is not the province of the magistrate to enter into a detailed
discussion of the merits or the de_merits of the case. In other words, the scope
of enquiry u/s 202 is limited to finding out the truth or false hood of the
complaint in order to determine the question of the issue of the process. The
enquiry is for the purpose of ascertaining the truth or falsehood of the
complaint i.e. for ascertaining whether there is evidence in support of the
complaint so as to justify the issue of process and commencement of
proceedings against the person concerned. The section does no say that a
regular trial for adjudging the guilt or otherwise, of the person complained
against should take place at the stage, for the person complained against can
be legally called upon to answer the accusation made against him only when a
process has issued and he is put on trial. It will be clear from the above that the
scope of enquiry u/s 202 of the Cr PC is extremely limited—limited only to
the ascertainment of the truth of falsehood of the allegations made
complaint_(i) on the material placed by the complaint before the court, (ii) for
the limited purpose of finding out whether prima facie case for issue of
process has been made out, and (iii) for deciding the question purely from the
point of view of the complaint without at all adverting to any defence that the
accused may have. In fact is well settled that in proceeding u/s 202 the accused
has got absolutely no locus-standi and is not entitled to be heard on the
question whether the process should be issued against him or not. Therefore at
the stage of Sec. Cr PC as the accused has no locus-standi the magistrate has
absolutely no jurisdiction to go into any materials or evidence which may be
produced by the accused, who may be present only to watch the proceedings
and not to participate in them. Indeed, if the documents or the evidence
produced by the accused are allowed to be taken by the magistrate, then an
inquiry u/s 202 convert into a full dress trial defeating the very object for
which this section has been engrafted. See--- Nagawwa Vs. Veeranna
Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC)
17. Examining all witnesses u/s 202 (2) not necessary even if complaint
involves offences triable by court of Sessions : Examining all witnesses u/s
202 (2) is not necessary even if complaint involves offences triable by court of
Sessions. See.....
1. Ajab Singh Vs. State of UP, 2012(76) ACC 747(All)
2. Shivjee Singh Vs. Nagendra Tiwary & others, 2010 (70) ACC 607(SC)

6
18. Magistrate to satisfy himself regarding truth or falsehood of evidence
u/s 200/202 Cr PC---At the stage of issuing process the Magistrate is mainly
concerned with the allegations made in the complaint or the evidence led in
support of the same and he is only to be prima facie satisfied whether there are
sufficient grounds for proceeding against the accused. It is not the province of
the magistrate to enter into a detailed discussion of the merits or the de_merits
of the case. In other words, the scope of enquiry u/s 202 is limited to finding
out the truth or false hood of the complaint in order to determine the question
of the issue of the process. The enquiry is for the purpose of ascertaining the
truth or falsehood of the complaint i.e. for ascertaining whether there is
evidence in support of the complaint so as to justify the issue of process and
commencement of proceedings against the person concerned. The section does
no say that a regular trial for adjudging the guilt or otherwise, of the person
complained against should take place at the stage, for the person complained
against can be legally called upon to answer the accusation made against him
only when a process has issued and he is put on trial. It will be clear from the
above that the scope of enquiry u/s 202 of the Cr PC is extremely limited—
limited only to the ascertainment of the truth of falsehood of the allegations
made complaint_(i) on the material placed by the complaint before the court,
(ii) for the limited purpose of finding out whether prima facie case for issue of
process has been made out, and (iii) for deciding the question purely from the
point of view of the complaint without at all adverting to any defence that the
accused may have. In fact is well settled that in proceeding u/s 202 the accused
has got absolutely no locus-standi and is not entitled to be heard on the
question whether the process should be issued against him or not. Therefore at
the stage of Sec. Cr PC as the accused has no locus-standi the magistrate has
absolutely no jurisdiction to go into any materials or evidence which may be
produced by the accused, who may be present only to watch the proceedings
and not to participate in them. Indeed, if the documents or the evidence
produced by the accused are allowed to be taken by the magistrate, then an
inquiry u/s 202 convert into a full dress trial defeating the very object for
which this section has been engrafted. See---Nagawwa Vs. Veeranna
Shivalingappa Nonjalgi, 1976 SCCr R 313 (SC)

19. Complaint case when to be dismissed u/s 203 Cr PC?--- (A)In the case of
Sirpal Vs. State of UP, 2009(67) ACC 425 (Allahabad High Court), it has

7
 been held that if the case of the complainant stated in his complaint does not
appear to be probable out of evidence u/s 200/202 Cr PC and the complaint is
filed by the complainant just to harass his opponent then the judicial process
cannot be allowed to be used as an instrument to harassment or oppression of
his opponent and such complaint should be dismissed.

20. Complaint case when to be dismissed u/s 203 Cr PC?---In the case of
Charan Singh Vs. Smt. Shanti Devi, 2004 Cr LJ 2408 (Allahabad High
Court), it has been held that if after inquiry u/s 200/202 Cr PC and after
considering the evidence u/s 200/202 Cr PC the magistrate is of the opinion
that there is no sufficient ground for proceeding with the case, he may dismiss
the complaint.

21. Order dismissing complaint u/s 203 CrPC must be reasoned and speaking
one---In the cases of Saroj Kumar Ray Vs. Smt. Santilata Mallick, 2004 Cr
LJ 5088 (Orissa High Court) and Chandra Deosingh Vs. Prakash
Chandra Bose, AIR 1963 SC 1430, it has been laid down that the order
dismissing complaint u/s 203 Cr PC should be speaking one.

22. Assigning reasons must even when complaint is dismissed in part in

respect of some of many accused or in respect of some of many offences---
In the cases of Dr. Mathew Abraham Vs. V. Gopal Krishnan, 2008 Cr LJ
2686 (Kerala High Court) and Prakasan Vijaya Nivas Vs. State of Kerala,
2008 Cr LJ 1272 (Kerala High Court) wherein it has been laid down that
while dismissing complaint u/s 203 Cr PC, magistrate is required to assign
reasons even when the dismissal is in part in respect of some of many accused
or in respect of some of many offences.

23. No meticulous evaluation of defence evidence by magistrate while

dismissing the complaint u/s 203 Cr PC---In the case of Surinder Pal Jetley
Vs. Bhisham Singh, 1995(32) ACC 18(Allahabad High Court) it has been
laid down that the magistrate has no powers to meticulously examine the
defence version while dismissing the complaint u/s 203 Cr PC.

24. Affidavit not to be read u/s 202 CrPC : In an enquiry into an offence by
Magistrate u/s 202 CrPC, personal examination of witnesses is imperative.
Filing of affidavit at the stage of Section 202 CrPC is not permissible. See....
(i) Smt. Ganga Chauhan Vs. State of UP, 2012 (76) ACC 25(All---LB)

8
 (ii) Hari Singh Vs. State of UP, 1992 CrLJ 1802(All)
25. Cognizance by Magistrate on receiving final report/police report
u/s 173 CrPC : The Magistrate has a role to play while committing the case
to the court of sessions upon taking cognizance on the police report submitted
before him u/s 173(3) CrPC. In the event the Magistrate disagrees with the
police report he has two choices. He may act on the basis of a Protest Petition
that may be filed or he may while disagreeing with the police report issue
process and summon the accused but he would have to proceed on the basis of
the police report itself and either enquire into the matter or commit it to the
court or session if the same was found to be triable by the sessions court.
Dharam Pal Vs. State of Haryana, AIR 2013 SC 3018(Five-Judge Bench).
26. Issuing notice to informant by Magistrate on receipt of final report
must : On receiving final report from investigating officer, it is mandatory
duty of Magistrate to issue notice to the informant (or the injured person or the
victim of the offence) to make his submissions against the final report. See :
(i) Bhagwant Singh Vs. Commissioner of Police, AIR 1985 SC 1285 (Three-Judge
Bench)
(ii) Sanjay Bansal Vs. Jawajarla Vats, AIR 2008 SC 207

27. Final report & powers of Magistrate thereon : The Magistrate has
following four options on receipt of a final report from investigating officer :
(i) to accept the formal form
(ii) in the event a protest petition is filed, to treat the same as a complaint petition
and if a prima facie case is made out, to issue process to the accused
(iii) to take cognizance of the offences against a person, although a final form has
been filed by the police, in the event he comes to the opinion that sufficient
materials exist in the case diary itself therefor
(iv) to direct re-investigation into the matter. See.
(i) Popular Muthiah Vs. State, (2006) 7 SCC 296 (para 54)
(ii) Minu Kumari Vs. State of Bihar (2006) 4 SCC 359
(iii) Abhinandan Jha Vs. Dinesh Mishra, AIR 1968 SC 117
(iv) Pakhando Vs. State of UP, 2001 (43) ACC 1096 (All--DB)

28. Final report & powers of Magistrate thereon : On completion of

investigation and after receiving a final report from investigating officer u/s
173(2) CrPC, the Magistrate is bound to issue notice to the informant of the
FIR and may also issue notice to the injured person or relative of the
deceased/victim of the offence to make his submissions on the final report.
The Magistrate has following three powers on receipt of the final report :
(i) he may accept the final report and drop the proceedings or

9
(ii) he may disagree with the final report and taking the view that there is sufficient
ground for proceeding further, take cognizance of the offences and issue process to
the accused or
(iii) he may direct further investigation to be made by the police u/s 156(3) CrPC. See :
Bhagwant Singh Vs. Commissioner of Police, AIR 1985 SC 1285 (Three-Judge
Bench) (para 4 & 5)
29. Affidavits of witnesses accompanying protest petition against final report
not to be considered by the Magistrate : Protest petition with accompanying
affidavits of complainant and his witnesses filed against the final report
received from the investigating officer cannot be considered by the Magistrate
for taking cognizance of the offences. Procedure of complaint case has been
provided under Chapter XV of the CrPC. No statement of complainant and
his witnesses who had filed their affidavits was recorded by Magistrate u/s 200
& 202 CrPC. Magistrate should have either passed the order on the protest
petition on the basis of the material in the case diary or should have treated the
protest petition as complaint but he could not have taken cognizance of
offence on the basis of affidavits. Magistrate has thus considered extraneous
material i.e. the protest petition and the affidavits while taking cognizance and,
therefore, his cognizance taking order was declared illegal. See :
(i) Dinesh Kumar Soni Vs. State of UP, 2010 (5) ALJ 719 (All)
(ii) Ramakant Vs. State of UP, 2010 (5) ALJ (NOC) 611 (All)
(iii) Pakhando Vs. State of UP, 2001 (43) ACC 1096 (All--DB)
(iv) 2009 (1) JIC 956 (All)
(v) 2007 (3) JIC 485 (All)
30(A-1).Section 195/340 CrPC when not attracted : Where forged document (sale
deed) was produced in evidence before court and the same was relied on by
the party for claiming title to property in question, it has been held by the
Supreme Court that since the sale deed had not been forged while it was in
custodial egis, therefore, bar in Section 195 CrPC against taking of cognizance
of offences u/s 468, 471 of the IPC was not attracted. See : C.P. Subhash Vs.
Inspector of Police, Chennai, 2013 CrLJ 3684 (SC). Ruling relied upon (i) Iqbal

Singh Marwah vs. Minakshi Marwah, AIR 2005 SC 2119 (Constitution

Bench).

30(A-2). Section 195(1)(b)(ii) CrPC when attracted?: Section 195(1)b(i) CrPC

refers to offences of false evidence and offences against public justice while
Section 195(1)(b)(ii) CrPC relates to offences in respect of documents
produced or given in evidence in proceeding in any court. Prosecution can be
initiated only by sanction of court under whose proceedings offence referred to

10
 in Section 195(1)(b) CrPC was allegedly committed. Object of Section 340
CrPC is to ascertain whether any offence affecting administration of justice
was committed in relation to any document produced or given in evidence in
court during the time when the document or the evidence was in custodia legis
and whether it is also expedient in the interest of justice to take such action.
Court has not only to ascertain prima facie case but also to see whether it is in
public interest to allow criminal proceedings to be instituted. In the present
case, the Magistrate had erred in taking cognizance of offence under Section
193 IPC on the basis of a private complaint and the High Court was justified
in setting aside the order of the Magistrate. See: Narendra Kumar
Srivastava Vs. State of Bihar and Others (2019) 3 SCC 318.

30(B).Principles of natural justice not violated if accused is not provided

hearing before filing of court complaint u/s 340 CrPC: Where in a land
acquisition proceedings, the claimants/land owners after playing chicanery on
the court had wangled a bumper gain as compensation and the reference court
which granted a quantum leap in awarding compensation to the land
owners/claimants later found that they had used forged documents of sale
deeds inveigling such a bumper gain as compensation and hence the court
ordered some of the claimants/landowners to face prosecution proceedings in a
criminal court. The court is not under a legal obligation to afford an
opportunity to be heard to claimant/landowner before ordering such
prosecution. The scheme underlying Section 340, 343, 238, 243 of the Code of
Criminal Procedure clearly shows there is no statutory requirement to afford
an opportunity of hearing to the persons against whom that court might file a
complaint before the Magistrate for initiating prosecution proceedings. Once
the prosecution proceedings commence, the person against whom the
accusation is made has a legal right to be heard. Such a legal protection is
incorporated in the scheme of the Code of Criminal Procedure itself. Principles
of natural justice would not be hampered by not hearing the person concerned
at the stage of deciding whether such person should be proceeded against or
not. The court at the stage envisaged in Section 340 of the Code is not
deciding the guilt or innocence of the party against whom proceedings are to
be taken before the Magistrate. At that stage, the court only considers whether
it is expedient in the interest of justice that an inquiry should be made into any
offence affecting administration of justice. See: Pritish Vs. State of
Maharashtra, AIR 2002 SC 236 (Three-Judge Bench).

30(C).Section 195/340 CrPC when not attracted : Where forged document (sale deed) was
produced in evidence before court and the same was relied on by the party for claiming title
to property in question, it has been held by the Supreme Court that since the sale deed had
not been forged while it was in custodial egis, therefore, bar in Section 195 CrPC against
taking of cognizance of offences u/s 468, 471 of the IPC was not attracted. See : C.P.
Subhash Vs. Inspector of Police, Chennai, 2013 CrLJ 3684 (SC). Ruling relied upon (i)
Iqbal Singh Marwah vs. Minakshi Marwah, AIR 2005 SC 2119 (Constitution Bench).

30(D).Unconditional apology for perjury can be accepted by the Court u/s 195/340
CrPC : Where an accused had made false statements before the company court and
proceedings against him for the offence of perjury was initiated u/s 195/340 CrPC
11
 and the accused had filed affidavit before the Hon'ble Supreme Court tendering
unconditional apology and humbly begged to be pardoned by stating that he never
had intention to show any disrespect or dishonor to court and the alleged false
statements were unintentional and he would not indulged in any such adventures in
future, the Hon'ble Supreme Court accepted the unconditional apology of the
accused and exonerated him of the said offence of perjury. It has also been held that
other parallel proceedings under the provisions of the Contempt of Courts Act, 1971
and u/s 21 of the Company Secretaries Act, 1980 would not be proper. See : Dhiren
Dave Vs. Surat Dyes & Others, (2016) 6 SCC 253.

30(E).Stricture against Sessions Judge for misunderstanding the provisions of Sec.

156(3) CrPC r/w. Sec. 195/340 CrPC : Where the Sessions Judge had recorded
findings in the judgment in a sessions trial that the informant had lodged false FIR
against the accused and, contrary to the provisions u/s. 195/340/344 CrPC, directed
the SSP in his judgment for registration of FIR against the informant u/s. 182 of the
IPC, the Allahabad High Court quashed the directions of the Sessions Judge as being
illegal and without jurisdiction and directed the Registrar General of the High Court
to send a copy of the judgment of the High Court to the Sessions Judge concerned
for his guidance in future. See---Lekhraj vs. State of U.P., 2008 (61) ACC 831
(All)

31. Words "informant" and "complainant" are different words in law : In

many of the judgments, the person giving the report under Section 154 of the
Code is described as the "complainant" or the "de facto complainant" instead
of "informant", assuming that the State is the complainant. These are not
words of literature. In a case registered under Section 154 of the Code, the
State is the prosecutor and the person whose information is the cause for
lodging the report is the informant. This is obvious from sub-section (2) of
Section 154 of the Code which, inter alia, provides for giving a copy of the
information to the "informant" and not to the "complainant". However the
complainant is the person who lodges the complainant. The word "complaint"
is defined under Section 2(d) of the Code to mean any allegation made orally
or in writing to a Magistrate and the person who makes the allegation is the
complainant, which would be evident from Section 200 of the Code, which
provides for examination of the complainant in a complaint case. Therefore,
these words carry different meanings and are not interchangeable. In short,
the person giving information, which leads to lodging of the report under
Section 154 of the Code, is the informant and the person who files the
complaint is the complainant. See : Ganesha Vs. Sharanappa & Another, (2014) 1
SCC 87 (para 14).

32. Magistrate has no jurisdiction to recall or review order issuing summons

u/s 204 CrPC : Magistrate has no jurisdiction to recall or review order issuing

12
 summons u/s 204 CrPC. See : Devendra Kishanlal Daglia Vs. Dwarkesh Diamonds
Pvt. Ltd., AIR 2014 SC 655.

33. Charge-sheet filed in non-cognizable offences to be treated as complaint

u/s 2(d) CrPC : Charge-sheet filed in non-cognizable offences has to be
treated as complaint u/s 2(d) CrPC and the magistrate may take cognizance by
proceeding as complaint case. See : Rambabu Kuswah Vs. State of UP,
2014 (84) ACC 198 (All).

34. Primary police report u/s 173(2) & supplementary police report u/s 173(8) to
be read conjointly : Supplementary police report received from police u/s 173(8)
CrPC shall be dealt with by the court as part of the primary police report received u/s
173(2) CrPC. Both these report have to be read conjointly and it is the cumulative
effect of the reports and the documents annexed thereto to which the court would be
expected to apply his mind to determine whether there is exists grounds to presume
that the accused has committed the offence and accordingly exercise its powers u/s
227 or 228 CrPC. See : Vinay Tyagi Vs. Irshad Ali, (2013) 5 SCC 762.
Note : The ruling in Vinay Tyagi case elaborately deals with the power of court
regarding (i) further investigation (ii) reinvestigation (iii) supplementary
police report received u/s 173(8) CrPC (iv) power of court to take second
time cognizance of the offences on receipt of supplementary police report u/s
173(8) CrPC (v) mode of dealing with final report and supplementary police
report received u/s 173(8) CrPC disclosing commission of offences.
35. Two case diaries submitted by two different investigating agencies after
two investigations to be read conjointly : Supplementary police report received
from police u/s 173(8) CrPC shall be dealt with by the court as part of the primary
police report received u/s 173(2) CrPC. Both these report have to be read conjointly
and it is the cumulative effect of the reports and the documents annexed thereto to
which the court would be expected to apply his mind to determine whether there is
exists grounds to presume that the accused has committed the offence and
accordingly exercise its powers u/s 227 or 228 CrPC. See : Vinay Tyagi Vs. Irshad
Ali, (2013) 5 SCC 762.
Note : The ruling in Vinay Tyagi case elaborately deals with the power of court
regarding (i) further investigation (ii) reinvestigation (iii) supplementary
police report received u/s 173(8) CrPC (iv) power of court to take second
time cognizance of the offences on receipt of supplementary police report u/s
173(8) CrPC (v) mode of dealing with final report and supplementary police
report received u/s 173(8) CrPC disclosing commission of offences.
36(A).Police officer has power of further investigation u/s 173(8) CrPC even
after submission of police report u/s 173(2) CrPC : Police officer has power
of further investigation u/s 173(8) CrPC even after submission of police report
u/s 173(2) CrPC. The power of the police officer u/s 173(8) CrPC is
unrestricted. Needless to say, Magistrate has no power to interfere but it

13
 would be appropriate on the part of the Investigating Officer to inform the
court. See :
(i) Dharam Pal Vs. State of Haryana, (2016) 4 SCC 160 (paras 21 & 22)
(ii) Vinay Tyagi Vs. Irshad Ali, (2013) 5 SCC 762
(iii) Bhagwant Singh Vs. Commissioner of Police, (1985) 2 SCC 537 (para
38)(Three-Judge Bench)
36(B).After discharge of accused, Magistrate cannot order further investigation
u/s 173(8) CrPC without application of I.O. u/s 173(8) CrPC : Once
cognizance is taken and accused is discharged by Magistrate, Magistrate
cannot suo motu order further investigation and direct investigating officer to
submit report. Investigating Officer is at liberty to file application for further
investigation u/s 173(8) CrPC. See: Bikash Ranjan Rout Vs. State Through
The Secretary (Home). Government of NCT of Delhi, New Delhi, AIR
2019 SC 2002
37. Police must obtain permission of court for further investigation u/s 173(8)
CrPC : Where after submission of charge-sheet u/s 173(2) CrPC, the court had
taken cognizance of the offences and thereafter the DIG had directed for further
investigation, it has been held by a Division Bench of the Hon'ble Allahabad High
Court that once the Magistrate had taken cognizance of an offence on the basis of
the police report received u/s 173(2) CrPC and the police still wants to conduct
further investigation, the minimum required from police is that the police should
seek formal permission of the court to make further investigation. The order of the
DIG ordering further investigation was abuse of powers and the same was quashed.
See : Prakash Ahirwar Vs. State of UP, 2014 (86) ACC 768 (All) (DB).
38. Duty of Magistrate when cognizance on police report received under 173(2)
CrPC already taken but on further investigation u/s 173(8) CrPC police
submits final report : Supplementary police report received from police u/s 173(8)
CrPC shall be dealt with by the court as part of the primary police report received u/s
173(2) CrPC. Both these report have to be read conjointly and it is the cumulative
effect of the reports and the documents annexed thereto to which the court would be
expected to apply his mind to determine whether there is exists grounds to presume
that the accused has committed the offence and accordingly exercise its powers u/s
227 or 228 CrPC. See : Vinay Tyagi Vs. Irshad Ali, (2013) 5 SCC 762.

Note : The ruling in Vinay Tyagi case elaborately deals with the power of court regarding
(i) further investigation (ii) reinvestigation (iii) supplementary police report
received u/s 173(8) CrPC (iv) power of court to take second time cognizance of the
offences on receipt of supplementary police report u/s 173(8) CrPC (v) mode of
dealing with final report and supplementary police report received u/s 173(8) CrPC
disclosing commission of offences.
39. Second time cognizance of offences under added Sections in supplementary
charge-sheet submitted u/s 173(8) CrPC : Where supplementary charge-sheet was
filed u/s 173(8) CrPC for offences other than those in the main charge-sheet, it has been
held by the Hon'ble Allahabad High Court that the same does not require re-cognizance of

14
 matter as cognizance had already been taken and if re-cognizance is taken regarding added
sections, then at the most, it may be called irregularity but it is not such irregularity which
may vitiate trial and is very well covered by the provisions of Section 460(c) of the CrPC.
See : Nawal Kishore Vs. the State of UP & Another, 2015 CrLJ (NOC) 95
(Allahabad).

40. Further investigation u/s 173(8) CrPC is continuation of the earlier

investigation : Further investigation u/s 173(8) CrPC is the continuation of the
earlier investigation and not a fresh investigation or a re-investigation to be started
ab-initio wiping out the earlier investigation altogether, Sec. 173(8) clearly
envisages that on completion of further investigation the Investigation Officer has to
forward to the magistrate a "further report" or "reports" and not a "fresh report or
reports" regarding the "further evidence" obtained during such investigation. See :
(i) State of AP Vs. A.S. Peter, 2008 (60) ACC 685 (SC).
(ii) K. Chandra Shekahr Vs. State of Kerala, (1988) 5 SCC 223.
41. Magistrate can summon some other person as accused not named in FIR or
charge-sheeted u/s 173(2) CrPC : Person who has not joined as accused in the
charge-sheet can be summoned at the stage of taking cognizance under S. 190. Thus,
the Magistrate is empowered to issue process against some other person, who has
not been charge-sheeted, but there has to be sufficient material in the police report
showing his involvement. In that case, the Magistrate is empowered to ignore the
conclusion arrived at by the investigating officer and apply his mind independently
on the facts emerging from the investigation and take cognizance of the case. At the
same time, it is not permissible at this stage to consider any material other than that
collected by the investigating officer. See : Sunil Bharti Mittal Vs. CBI, AIR 2015
SC 923 (Three-Judge Bench).
42. Police has right of further investigation u/s 173(8) CrPC even after submission
of charge-sheet u/s 173(2) CrPC : Re-investigation of a case is forbidden in law.
Even after submission of charge-sheet u/s 173(2) CrPC, police has right to further
investigate but not for fresh investigation or re-investigation. See :
(i) Rama Chandrana Vs. R. Udhayakumar, (2008) 5 SCC 413
(ii) Mithabhai Pashabhai Patel Vs. State of Gujarat, 2009 (4) Supreme 368.

43. Recording of statement u/s 164 CrPC after submission of charge-sheet and
taking of cognizance permissible: Recording of statement u/s 164 CrPC after
submission of charge-sheet and talking of cognizance is not re-investigation or fresh
investigation. See : Krishna Kumar Vs. State of UP, 2010 (70) ACC 279
(All)(LB).

44. Magistrate cannot suo motu direct a further investigation u/s 173(8) CrPC : A
Magistrate cannot suo motu direct a further investigation u/s 173(8) CrPC or direct a
re-investigation into a case on account of the bar of Sec. 167(2) CrPC. See : Reeta
Nag Vs. State of W.B., 2010 (70) ACC 571 (SC).

15
45. Sessions Judge & not the Magistrate has power to direct further investigation
u/s 173(8) CrPC after committal of case to the Sessions : Charge-sheet u/s 120-B,
302, 201IPC -- cognizance taken by Magistrate--case committed to Sessions --
sessions trial pending before Sessions Judge--application u/s 173(8) CrPC for further
investigation --proper procedure is to move Sessions Judge u/s 173(8) CrPC. See :
Virendra Prasad Singh Vs. Rajesh Bhardwaj, (2010) 9 SCC 171.

46. Cognizance by Magistrate u/s 190 CrPC in a sessions tribal case can be taken
only once : Cognizance by Magistrate u/s 190 CrPC in a sessions tribal case can be
taken only once. After commitment of the case u/s 209 CrPC to the sessions, the
sessions court can take cognizance of further offences in exercise of its powers u/s
193 CrPC. See : Balveer Singh Vs. State of Rajasthan, (2016) 6 SCC 680.
47. Complaint case involving dispute of only civil nature liable to be quashed u/s
482 CrPC : In the present case, the High Court quashed the complaint against the
respondent-accused filed for the alleged offences u/s 420, 406 read with Section 34
IPC. Ingredients of offences of Sections 406 and 420 IPC were found not satisfied.
Averments and allegations made in the complaint did not disclose any criminality on
the part of the accused and civil dispute was tried to be converted into a criminal
dispute. The Supreme Court held that the criminal proceedings were rightly quashed
by the High Court u/s 482 CrPC. See: Vinod Natesan Vs State of Kerala and
others (2019) 2 SCC 401

*******

16